"Persianazo 'and directors' liability
When a company "missing closure" or makes a “persianazo” y no paga sus deudas, Is it possible to be directed against its managers?
We hope that the reader never has occurred, but it is a perfectly common case in our present society that, on the occasion of certain trade relations, party, trying to avoid paying a lawful debt, proceda a “echar el cierre” o a hacer un “persianazo”, sell its assets, and it does not allocate anything to satisfy his creditors. Can anything be done in such cases?
The judgment of the First Chamber of the Supreme Court No. 472/2016, of 13 July, resuelve un caso sobre dicha controversia en relación a la individual action against the directors. The factual background are as follows:
1. Moldex Metric AG& CO. KG Branch in Spain (onwards, Metric) it was a society dedicated to the marketing of respiratory protection and hearing, and maintained trade relations with Commercial Cepys, S.L. (onwards, Cepys). Because of these relationships, Cepys owed Metric 109.019,31 €.
2. Cepys managers were Constancio and Violet. Also, Cepys shared business address and telephone contact with two other companies, Guantenic S.L.. y Foxline Control S.L. Since the year 2008, Cepys indeed ceased their activity, selling all its assets, but administrators did not attend the debts of the company with the liquid perceived sales and proceeded to liquidate and dissolve the company by the procedure provided for this purpose.
3. La entidad Metric interpuso demanda de juicio ordinario ante el Juzgado de lo Mercantil Nº 02 Barcelona against Guantenic S.L.. y Foxline Control S.L. and severally against Constancio. In the complaint exercised, on the one hand, a acción de responsabilidad contra el administrador de Cepys, Constancio, y una acción de reclamación del crédito contra las sociedades Guantenic S.L. y Foxline Control S.L., through levantamiento del velo.
4. El Juzgado de lo Mercantil Nº 02 Barcelona, by Sentence 11 May 2012, It estimated the liability action against the manager Cepys, Constancio, on the understanding that had been established the link between the closing of fact Cepys and nonpayment of debt 109.019, 31 €. On the other hand, He dismissed the action claim credit by lifting the veil.
5. Contra dicha sentencia la representación de Constancio interpuso recurso de apelación ante la sección 15ª de la Audiencia Provincial de Barcelona, which upheld the appeal in full -desestimando demand, by tanto- in Case 17 July 2013, on the ground that the applicant had not established the link between the closure of fact Cepys and nonpayment of debt 109.019, 31 €.
6. And the embroidery, contra dicha sentencia fueron interpuestos un recurso extraordinario por infracción procesal y un recurso de casación ante la Sala Primera del Tribunal Supremo, that resolved by the judgment we are commenting.
As regards the extraordinary appeal for procedural infringement, the Metric entity claimed that the judgment of the Provincial Court of Barcelona had infringed Article 217.7 Civil Procedure Act (concerning the burden of proof in relation to the ease and availability of probation each of the parties to the dispute).
He understands because the Provincial Court considered the appeal on the ground that the plaintiff has failed to prove the existence of a direct link between the closing of fact (involving the sale of corporate assets) Metric and debt default, omitting that Constancio was the defendant who was in position more easily to prove that it had for the payment of social debts the liquid derived from assets sold with the closing of fact the debtor company and who, in accordance with Article 217.7 LEC, should try.
The Supreme Court considers this resource, understanding that, really, Constancio was for the defendant to establish that liquidity had led the derivative closure made to the satisfaction of the outstanding social debts, for it was he who was in the best position to demonstrate this reality.
As regards the appeal, the Metric entity alleged infringement of Articles 133 and 135 the then Consolidated Corporations Act, referidos a la Single action liability of directors, to the extent that, según el recurrente, actually it meant closing the sale of assets whose liquid is not used to pay debts, as well as the delay in the payment falls due by issuing promissory notes which then did not attend.
The First Chamber of the Supreme Court, bringing up his sentence 253/2016, of 18 April, indicates, for the assessment of the individual liability of directors for corporate debts, the law requires the following requirements:
i) An active or passive behavior of administrators;
ii) That such behavior is attributable to the board as such;
iii) That the conduct is unlawful administrator for violating the Law, statutes or not fit the standard or pattern required of an orderly businessman diligence and a loyal representative;
iv) The conduct unlawful, culpably negligent, is capable of producing damage;
in) The damage must be inferred directly to the third party under contract, without harming the interests of society; and
we) The causal link between the unlawful conduct of the administrator and the direct damage caused to third.
Also, based on its judgment 396/2013, of 20 June, also it brings up the distinction between liability action against administrators for damages caused to society, which is substance in the so-called social action, and acción de responsabilidad contra los administradores por daños causados a socios o terceros, which is substance in the so-called individual action (under appeal). This distinction, recalls the judgment, It is the reason why the law excludes the exercise of individual action to claim for damages suffered the partner in its assets as a result of damage caused to society (to the extent that such damage has been inflicted indirectly by partner, through damage directly caused to society).
Finally, and referring to the case, recalls that para que pueda imputarse al administrador de una sociedad el impago de una deuda social como daño ocasionado de manera directa al tercero acreedor, should “existir un incumplimiento nítido de un deber legal al que pueda anudarse de forma directa el impago de la deuda social”.
Moving it to the specific case, significa que “no basta con acreditar que la sociedad hubiera estado en causa de disolución y no hubiera sido formalmente disuelta, but must prove that, the correct dissolution and liquidation have been made had it been possible to creditor made payment of the debt. "
For the above reasoning, atendiendo a que era el administrador demandado quien debía haber acreditado que había destinado el líquido obtenido con la venta de activos a la satisfacción de las deudas sociales.
Pot otra parte, the Chamber considers that con el cierre de hecho Constancio consiguió 1) delay the payment falls due by issuing promissory notes he attended not reached maturity and 2) allocate the value of social goods to other end of the satisfaction of social debts. So finally, the Supreme Court considers the appeal.
What results from this case, ultimately, is that possible, in any case, collect a legitimate debt, aun cuando se produzca un cierre de hecho o “persianazo” por parte del deudor, provided they make a considerable effort Argumentative. Y el deudor será quien deba probar su diligencia.
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